Mpesse v. Garland
20-61207
| 5th Cir. | Sep 17, 2021Background
- Donatien Pires Mpesse, a Cameroonian national, entered the U.S. in Nov. 2019 and claimed past persecution in Cameroon because of his homosexuality (two arrests: Mar. 8, 2015 and Sept. 2018).
- He reported an eye injury from the 2015 arrest (blurry vision/partial blindness) and described beatings, bystanders throwing rocks, and one partner dying in custody.
- Mpesse passed a credible-fear interview and applied for asylum, withholding of removal, and CAT protection; an IJ denied relief after making an adverse credibility finding.
- The BIA affirmed the adverse-credibility determination but relied on only three “significant inconsistencies”: (1) location/bystander accounts of the 2015 arrest, (2) details and treatment of the eye injury, and (3) whether the 2018 discovery was by the landlord or the landlord’s son.
- The Fifth Circuit majority agreed with the BIA on two of those inconsistencies and an omission, rejected reliance on the location/festival ground, and concluded that because the BIA/IJ had relied in part on improper grounds it could not determine whether the remaining valid inconsistencies alone would sustain the adverse credibility finding — it granted review and remanded for re-evaluation. (Judge Elrod dissented.)
Issues
| Issue | Mpesse's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether IJ/BIA permissibly relied on an alleged inconsistency about being at a festival/park on Mar. 8, 2015 | Mpesse: IJ/BIA misread the credible-fear interview; he never said he was at a festival, only that Mar. 8 "is the festival of the woman." | Gov: The discrepancy shows inconsistent statements about location/bystanders and supports disbelief. | Court: Rejected this ground — no record evidence Mpesse said he was at a festival, so IJ/BIA erred relying on it. |
| Whether inconsistencies about the eye injury and treatment support adverse credibility | Mpesse: He did not say he was ‘‘blinded’’ at credible-fear interview and provided explanations about treatment mentions. | Gov: Written statements and hearing testimony contain contradictory accounts about blindness, blurred vision, surgery, and treatment. | Court: Upheld this inconsistency as a specific, record-based basis for adverse credibility. |
| Whether the discrepancy over who discovered him in Sept. 2018 (landlord vs. landlord’s son) supports adverse credibility | Mpesse: The difference is minor; other filings and testimony consistently say it was the landlord’s son. | Gov: Any inconsistency or omission may be relied on; this is an obvious inconsistency that Mpesse had an opportunity to explain. | Court: Upheld this inconsistency as an admissible basis for disbelief. |
| Whether the errors in the BIA/IJ credibility analysis require remand | Mpesse: Some BIA/IJ reasons were improper; the court must re-evaluate whether remaining valid inconsistencies suffice. | Gov: Remaining inconsistencies and omission collectively justify adverse credibility; no remand needed. | Court: Granted petition and remanded because it could not conclude no reasonable factfinder would still credit Mpesse given the mix of sustained and rejected grounds. |
Key Cases Cited
- Wang v. Holder, 569 F.3d 531 (5th Cir. 2009) (any inconsistency or omission may support adverse credibility when totality shows incredibility)
- Mwembie v. Gonzales, 443 F.3d 405 (5th Cir. 2006) (defer to IJ credibility findings if supported by the record)
- Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012) (standard of review: BIA factual findings substantial-evidence; legal conclusions de novo)
- Vidal v. Gonzales, 491 F.3d 250 (5th Cir. 2007) (credibility determinations are factual findings reviewed for substantial evidence)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (petitioner bears burden to show record compels contrary credibility finding)
- Lin v. Mukasey, 534 F.3d 162 (2d Cir. 2008) (totality permits reliance on any inconsistency or omission)
- Ghotra v. Whitaker, 912 F.3d 284 (5th Cir. 2019) (IJ may rely on any inconsistency or omission in assessing credibility)
- Avelar-Oliva v. Barr, 954 F.3d 757 (5th Cir. 2020) (defer to IJ unless no reasonable factfinder could make adverse credibility ruling)
- Anderson v. City of Bessemer City, 470 U.S. 564 (1985) (trial judge’s credibility findings warrant great deference)